Human Rights Developments
Prominent among those issues is the Court of Final Appeal described in the 1984 Joint Declaration between China and the U.K. that was to replace the Privy Council in London as the court of last resort. The agreement provided that the Court "may as required invite judges from other common law jurisdictions to sit, "a provision designed both to ensure an adequate pool of high-caliber judges and to insulate the court from political pressure after the transition. A 1991 bilateral agreement that only one foreign judge would be able to sit on at most half of the Court's sessions drew protests from legislators and the bar, as did the restriction of the Court's jurisdiction to exclude "acts of state," a common law term that might be expansively interpreted by China to include a large range of cases involving government interests.
Nevertheless, in June of this year China and the U.K. agreed on implementing legislation that would preserve the limit of one foreign judge, the acts of state exception, and delay the establishment of the Court until the 1997 transition. This foreclosed the possibility that some of the jurisdictional uncertainty might be resolved in advance through the precedent of the Court's own decisions. The Legislative Council narrowly approved the legislation in July of this year, but key political figures such as Martin Lee, the leader of the Democratic Party, remained convinced that the compromise has jeopardized Hong Kong's judicial independence, and appeared eager to try to amend the legislation. The government, for its part, argued that these features do not threaten the Court's independence and that the alternative was to risk having China dissolve the Court and fashion its own institution in 1997.
The power of this argument illustrated how profoundly Beijing's threats have begun to shape the future of the territory. The Chinese government has promised to appoint a temporary legislature in place of the one elected this year, and it is this appointed body that would be called upon to approve the most basic institutional arrangements for the post-colonial era, including confirming the judges for the Court of Final Appeal. The Chinese government has also threatened to repeal the 1991 Bill of Rights, and it has so far refused to report to the U.N. Human Rights Committee on the application of the International Covenant on Civil and Political Rights (ICCPR), a breach of its bilateral obligation to ensure the covenant's application to Hong Kong. The Chinese government has also threatened to dissolve the lower tiers of elected representation in Hong Kong, the municipal councils and district boards, and in October a Beijing-appointed committee declared that the system of executive appointments to these bodies should be reintroduced.
While strenuously lobbying for its own legislative proposals, the Hong Kong government opposed initiatives by individual legislators, such as a trio of anti-discrimination bills introduced by appointed member Anna Wu. Private discrimination, particularly in employment, remained endemic in Hong Kong, where job advertisements frequently specified age, sex and even race as qualifications. Arguing that the measures were too radical, the government proposed its own more limited version and successfully lobbied to have Wu's drafts voted down in July. Other legislators promised to reintroduce the bills. The governor also refused to allow the legislature to consider a bill for an equal opportunity commission.
The Hong Kong government made progress in reforming the archaic colonial laws of the colony to be in conformity with the Bill of Rights, although the pace and extent of reform did not satisfy many human rights advocates. One example was the government's striking out a number of restrictive subsidiary laws enacted under the authority of the Emergency Regulations Ordinance, including provisions that allowed the government to censor and suppress publications. The government, however, left untouched the ordinance itself, which permits the governor to declare an emergency and issue laws and regulations on any subject, leaving open the prospect that new regulations will be promulgated under its authority. In October, a Beijing-appointed committee called for reinstatement of the emergency regulations, of the governor's power of censorship, of the former ban on societies not registered with the police, and an end to the Bill of Rights' power to override legislation.
Other government-proposed legislative amendments scrapped or modified licensing, permit or registration procedures for demonstrations, megaphones, public performances, and news organizations. A bill introduced by legislator Martin Lee passed in December 1994, repealing a section of the Film Censorship Ordinance that had been used to censor Taiwanese films, such as a documentary on the pro-democracy movement, because they might "seriously damage relations with other territories." The government submitted to China its proposed legislative amendments to the Official Secrets Act, and it planned to submit amended laws on treason and sedition to the legislature later next year.
Self-censorship in the media continued to be a serious problem, albeit difficult to document. A poll of journalists conducted in February by the University of Hong Kong revealed that more than 80 percent believed that self-censorship took place occasionally or frequently and that press freedom would decrease during the next three years. The Hong Kong Journalists Association reported several potential incidents of self-censorship. ATV television in December 1994 dropped the popular talk show News Tease after its confrontational host, Wong Yuk-man, was accused by pro-Beijing newspapers of being "anti-China" and "hostile." In January, Hong Kong's two land-based television stations refused to air a British Broadcasting Corporation documentary on the sale of organs from executed prisoners in China. In May, the South China Morning Post abruptly canceled the popular and controversial "Lily Wong" cartoon strip, citing financial reasons but refusing to run the balance of cartoons that were already paid for. One of the last strips had shown a Chinese official assuring an observer that there will be no future shortage of organs for sale from executed prisoners because "by then it'll be 1997 and we got all the democrats and over a dozen cartoonists!"
Pressure on journalists took less subtle forms as well. Both Xi Yang, a reporter for Ming Pao, and Gao Yu, a free-lance contributor to Hong Kong publications, continued to languish in Chinese prisons for their reporting, which the Chinese government prosecuted as "espionage" (see China section). The Chinese government continued to deny entry to journalists it considered untrustworthy.
The Chinese government also tried to control access to the mainland by perceived political opponents. In July, it denied an entry permit to Cheung Man-Kwong, a member of the government's Education Commission and a Democratic Party legislator. Rosie Young, the chairwoman of the commission, canceled its planned official visit to China in response. Later in the month, China banned Martin Lee from attending a law seminar.
Serious abuses against Vietnamese asylum seekers took place again this year, as Hong Kong authorities increasingly resorted to force in connection with deportation procedures and camp inmates resisted ever more violently. The most serious incident took place on May 20, when police and correctional service officers moved some 1,500 asylum seekers from a section of the Whitehead Detention Centre to High Island in preparation for deportation. The officials fired 3,250 tear gas canisters during a period of eight hours, also using truncheons and mace against the Vietnamese. The asylum seekers responded initially by barricading themselves, but as the assault progressed, neighboring sections hurled home-made spears and projectiles at the oncoming force. Nearly 170 officers were treated for injuries, most for heat exhaustion, and seventy-eight Vietnamese reported injuries from batons, gas canisters, mace and shields, in addition to the hundreds who suffered the effects of tear gas, among them women, children and babies. Among the injured was a sixty-five-year-old woman who was sprayed with mace, kicked in the ribs and struck by a truncheon, and a baby who had fainted from the tear gas and was accidentally scalded when an inexperienced officer tried to revive her under what turned out to be a hot water tap. Few Vietnamese complained to the authorities, however, because of the experience of almost 400 other asylum seekers who pressed complaints of injury and loss of property from a similar raid that took place on April 7, 1994; few of these complainants had yet had their request for legal aid processed, and many were deported in the meantime.
Despite the massive use of tear gas and the injuries produced during the raid, the Hong Kong government refused to appoint a commission of inquiry, or indeed, to release video footage of the operation. It relied on its own account of events and a sketchy report by four independent monitors, two of whom questioned the use of tear gas. In the next operation, on June 8, authorities again deployed large amounts of tear gas in response to what they said was violent resistance, a claim disputed by Vietnamese who witnessed the events. Independent monitors arrived after the conflict was virtually over, as the authorities did not notify them that disturbances had caused police and correctional officers to move in ahead of the scheduled time. Incidents of violence by both officials and Vietnamese continued to plague camp transfers and deportations, and the authorities continued to incarcerate Vietnamese whom they deemed "troublemakers" or "protesters" without any legal hearing or review in punitive detention facilities such as Victoria Prison. In July, Vietnamese brought allegations that camp guards had beaten two Vietnamese youths during an otherwise peaceful demonstration of children protesting the decision to terminate secondary schooling for asylum seekers; officials denied the allegations but again refused to release videotapes they had made of the incident.
The Right to Monitor
The government continued to restrict press access to detention centers for Vietnamese asylum seekers, and in August banned reporters from observing deportation actions as well. Lawyers for asylum seekers continued to have access to their clients, but under highly restricted conditions.
The Role of the International Community
The administration continued to support Hong Kong's deportation policy regarding Vietnamese asylum seekers and expressed no concern at the increasingly forceful measures used and the violence they provoked. It was taken by surprise when a legislative measure to facilitate U.S. resettlement of boat people proposed by Representative Chris Smith passed the House by a wide margin. The measure, premised on concerns that the screening process to identify genuine refugees was flawed or corrupt, would have made reintegration assistance for returnees in Vietnam conditional on the re-screening of the more than 40,000 Vietnamese asylum seekers in the region for determination of their refugee status. The bill had an immediate effect in both Asia and Washington: voluntary repatriation dropped sharply as asylum seekers waited to see the fate of the legislation, and the administration then produced an alternative proposal whereby Vietnamese who volunteered to return home would be eligible for resettlement screening by U.S. officials in Vietnam.
The Sino-British agreement over the Court of Final Appeals marked one of the first significant points of cooperation between the two countries since Governor Patten's proposals for electoral reform in 1993. At an October meeting the foreign ministers of China and the U.K. agreed on further measures, including the establishment of liaison structures between Chinese officials and Hong Kong government offices and civil servants, an agreement to resolve disputes over port development, and a committee to oversee the transition ceremonies. Critical issues such as the survival of the current legislature, however, did not come up at the talks, although Britain did agree to provide China with approximately $150 million in soft infrastructure loans. In September, Governor Patten mentioned that Britain ought to give the 3.2 million holders of British Dependent Territories Citizen passports in Hong Kong the right of abode in Britain, a proposal immediately ruled out by Home Secretary Michael Howard.
At the conclusion of its hearing in October, the U.N. Human Rights Committee told a joint U.K.-Hong Kong government delegation that it considered China obligated to continue to report on the application of the ICCPR to the territory, and called on the delegation to return next year to explain exactly how this responsibility would be transferred. Members of the committee stated that China should maintain Hong Kong's Bill of Rights and the recently elected legislature, and also criticized the British administration's treatment of Vietnamese asylum seekers.
The Work of Human Rights Watch/Asia